Case information

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Wills and estates - Intestacy - Trusts - Ownership of a family home held in joint tenancy by the Respondent, Thomas Robert Armstrong and Barbara Clarke, his former common-law wife, until her death - No will had been located for Clarke - Supreme Court of British Columbia found Armstrong held the property in trust for Clarke’s daughters subject to his own life interest - Court of Appeal ordered that the trust declaration be set aside - Whether a presumption of a severance of all jointures between former common-law spouses should apply such that a resulting trust in favour of the deceased’s heirs is created - Whether that presumption should be rebutted with evidence that the residuary beneficial interest of the children is otherwise secured by an enforceable interest - Whether a court has the ability to grant relief not specifically sought by a party.

This application for leave to appeal is about the ownership of a family home held in joint tenancy by the Respondent, Thomas Robert Armstrong and Barbara Clarke, his former common-law wife, until her death. Armstrong and Clarke were in a common-law relationship for approximately eight years, but separated on June 14, 2003. Clarke died following a motorcycle accident three weeks later. No will had been located for Clarke. Shortly after her death, Armstrong registered the family home in his name. He then sued for a declaration of ownership. The Applicants, Melissa Lynn Clarke (Clarke’s daughter), Amanda Marie McIlmoyl (Clarke’s daughter), Verna Vass (Clarke’s mother and co-administrator of Clarke’s estate) and the Respondent, Brittany Lynn McIlmoyl (Clarke’s daughter), counterclaimed for a declaration of resulting or constructive trust. The Supreme Court of British Columbia found that Armstrong and Clarke were not common-law spouses and that Armstrong held that property in question in trust for Clarke’s daughters, subject to his own life interest. Armstrong’s claim for rent from Melissa Clarke was dismissed. The Court of Appeal allowed the appeal in part. It ordered that the trust declaration be set aside and the claim for occupational rent be dismissed.